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Ask the Neuroethicist: Can a Neurologist Write a DNR Order on a Terminally Ill Patient Without Consent?

A 62-year-old woman with a right parietal lobe glioblastoma multiforme was admitted for terminal care. The diagnosis had been made 18 months earlier. She had been treated with surgery, radiation therapy, and temozolomide. She began to deteriorate six weeks prior to admission with more frequent seizures, progressive hemiparesis, and progressive cognitive decline leading to complete incapacity. She was widowed. Her adult children insisted on aggressive treatment. Upon admission, the neurologist had to indicate her cardiopulmonary resuscitation status. He knew that her children would oppose a Do Not Attempt Resuscitation (DNR) order, so he considered writing one without their approval. How would you advise him?

The DNR order has an interesting history and occupies an unusual place in medical practice. When closed-chest cardiopulmonary resuscitation (CPR) was developed 50 years ago, its successes in saving the lives of previously healthy patients who suffered cardiac arrest led to it rapidly becoming standard emergency therapy that would always be performed in the event of cardiac arrest. Within a decade, however, it became clear that CPR was unsuccessful in nearly all patients dying of chronic diseases, and produced a futile, unnecessary, and violent final end to their lives. Accordingly, the DNR order was devised to prevent the requirement to attempt CPR in those futile circumstances for which it had been neither developed nor intended. Older physicians recall the days when DNR orders were made and followed clandestinely before the order was generally accepted as good medical practice and permitted by hospital policies. Today, nearly all hospitals require physicians admitting patients to indicate whether the patient is a candidate to receive CPR or is DNR.

The DNR order is completely different from all other orders. For usual therapies, patients with decision-making capacity — or the lawful surrogate decision-makers of incapacitated patients — must consent to receive a therapy before it is given. Emergencies, in which consent is not feasible, comprise an exception for which standard emergency therapies may be administered under a doctrine of implied consent. Most hospital policies require physicians to obtain a patient's or surrogate's consent before writing a DNR order. But obtaining “consent” for a DNR order is misleading because a DNR order is actually making explicit a refusal of therapy. In absence of this explicit refusal, the patient will receive it. Thus, CPR is an “opt-out” phenomenon unlike nearly all other therapies which are “opt-in.” This difference has led to ambivalence and uncertainty about the role of the physician in writing DNR orders.

Many studies have identified patient comorbidities leading to unsuccessful CPR. These studies reveal that CPR almost always fails in patients with metastatic cancer, acute stroke, sepsis, advanced dementia, or multi-organ system failure. Other studies have quantified the probability of success using these and other factors. Of course, in addition to these quantitative outcome data, there are qualitative outcome data on the neurological condition of CPR survivors showing a high incidence of severe neurological deficits. Thus, there is a substantial evidence base for concluding that CPR is futile in many medical conditions and therefore should not be conducted.

A principle of medical ethics provides that physicians are not required to offer or discuss ineffective therapies with patients and surrogates. Thus, for example, because a controlled clinical trial showed the ineffectiveness of hyperbaric oxygen therapy in multiple sclerosis (MS), neurologists are not required to offer or discuss this treatment option with their MS patients. Applying this principle, several scholars argued that hospital policies should permit physicians to write “unilateral” DNR orders, without obtaining patient or surrogate consent, for patients whose underlying conditions predicted the utter futility of attempting CPR. They argued that because CPR is completely ineffective in these cases, physicians need not offer or even discuss it with patients or surrogates and can simply write a DNR order. Several hospitals have drafted policies containing this provision.

I agree that physicians should not be required to mention or discuss ineffective therapies with their patients or their surrogates. But I see an important distinction between CPR and other possible therapies. Nearly everyone has heard of CPR and knows that it is routinely available. Many people have heard of successful resuscitations or have seen them portrayed (usually inaccurately) in medical dramas on television or in movies. I believe that purposely not to mention the possibility of CPR is to squander an opportunity for an important discussion with the patient or surrogate on the patient's goals of therapy.

Some medical ethics scholars claim that physicians should provide a list of options for treatment from which patients or their surrogates can choose a preference. These scholars would simply place the decision to receive CPR or have a DNR order squarely on the patient or surrogate. I recommend a different strategy. When I conduct these conversations, I guide the patient or surrogate to the right decision by framing it in the following way. I explain that CPR is an available technology that is marvelously successful in some circumstances. I mention that CPR could be attempted in this patient but that the outcome data show conclusively that it would fail because of the patient's illness burden, and would succeed only in traumatizing the patient and convert his or her final moments of life from a peaceful passing into a medical disaster for no benefit. I further explain that, accordingly, I plan to write a DNR order. Framing the discussion in this way removes the potential for guilt over the decision from the surrogate. The surrogate sees that he or she is merely being asked to concur with the physician's recommended plan of action, not to make an independent decision. It also provides the opportunity to discuss the patient's goals of therapy in a satisfying way rather than pretending that the possibility of receiving CPR does not exist. In my experience, the large majority of surrogates and other family members agree with the DNR order once it is explained in this way and are grateful for the conversation.

Of course, there are a few cases in which surrogates and sometimes patients will resist this argument and persist in refusing a DNR order. Each physician must decide how to handle these rare cases. Some physicians will write a DNR order anyway, as in the famous case of Catherine Gilgunn vs. the Massachusetts General Hospital (decided in favor of the physician), or will simply permit CPR to continue despite its futility and harm to the patient. A few medical ethicists recently have argued that, despite its futility, there are situations in which hopeless CPR should be conducted when it is justified by the benefit to family for whom it is critical to know that “everything possible” was done for their loved one.

A major reason that some patients or family members insist on treatment, even when it is ineffective, is their unrealistic beliefs about the illness, CPR, and its outcome. Public education about the successes and failures of CPR in varying circumstances is obviously needed as are more realistic depictions in popular media of CPR and its outcomes. There are interesting data showing that the more informed the public is about exactly what CPR entails, the more likely they are to agree to a DNR order. One study showed a dramatic decline in requests for CPR among elderly residents of a retirement community once they had simply viewed a video of an actual CPR.

Dr. Bernat is the Louis and Ruth Frank Professor of Neuroscience and Professor of Neurology and Medicine at Dartmouth Medical School. He is the former chair of the AAN Ethics Law & Humanities Committee and is the author of Ethical Issues in Neurology, 3rd ed. (Lippincott Williams & Wilkins, 2008).

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